IT – AEA

IP and Privacy Rights as Fundamental Rights

Napisane przez AEA - EAL w dniu 2021-03-25. Opublikowano w Articles.

March 25, 2021

Izabela Konopacka

The three sources of fundamental rights in the European Union undoubtedly reflect the complicated nature of the Union’s legal system.

Firstly, since the 1960s there has been continual development of a system of fundamental rights protection based on the general principles taken from Member State Constitutions. In turn, we can find them in the Court of Justice of the European Union’s jurisprudence.

Secondly, the Union has adopted its own Fundamental Rights in the form of the Charter of Fundamental Rights, which as a „written Bill of Rights” offers EU citizens a structured set of rights and makes it easier to use them.

Thirdly, there is a system of fundamental rights protection based on the European Convention on Human Rights. This directly affects the Member States and indirectly the EU system as a whole. Following the Lisbon Treaty, the EU’s ability to become a party to the Convention was confirmed. However, as we all know, it has not been accepted yet, therefore, we cannot make a complaint to the Court of Human Rights against the EU because it is not a signatory to the Convention.

Human Rights/Fundamental Rights involved

When it comes to how our fundamental rights are protected under the Charter and Convention we see the overlap between the two treaties. Furthermore, these have been interpreted and expanded by the Court of Human Rights. The EU, for example, has developed fundamental rights into legislation showing some of the differences between the institutions.

For example, Article 10 of the Convention protects our right to have our own opinions and to express them freely without government interference, Public protest, Freedom of the press and the same rights are mirrored under article 11 of the Charter

Article 8 of the Charter sets out the right to the protection of personal data, but the EU carries this further with, a whole range of specific protection such as the GDPR. The Convention expresses this differently, where the Court on Human Rights has emphasised that Article 8 includes private and family life, home, and correspondence including mail, telephone communications and e-mails in the workplace.

The ‘freedom to conduct a business’ in the charter on human rights, article 16 has been recognised by the CJEU to exercise an economic or commercial activity as we might expect. However, because the Convention also applies to legal entities, their rights are protected too.

Having said this, there is an established concern about the standard of protection given at supranational level as well as the concern if and how the CJEU should allow Member States to apply their own, national, standard of rights protection as different from the EU standard when a situation falls within the scope of EU law remains controversial.

The above point was addressed in Melloni (C-399/11) where the CJEU gave its opinion on the primacy and uniformity of EU law. The case highlighted the difficult nature of rights protection in the EU. However, it also showed that the CJEU admitted that the level of protection for fundamental rights, for example, a right to a fair trial, may be lower than the level of protection guaranteed by the Convention because of the supremacy of EU law.

The above case also shows the differences between the two European Courts, while the Court on Human Rights interprets the Convention’s rights as a minimum standard, the EU mainly interprets EU rights standard as a maximum. Perhaps the jury is still out, and I should ask the rhetorical question. When it comes to human rights in Europe, are there really two rules and two protections?

Protection of copyrighted work on the Internet and Service Provider Liability

We are all aware of the development of the Internet with new IT technologies contributing to largely uncontrolled exploitation of property protected by IP rights, including materials covered by copyright protection.

Apart from the problem of copyright infringement by individual Internet users or just end-users. There is the issue of the liability of businesses providing services on the Internet, who do not use the materials themselves but make the technical infrastructure available that enables their transmission, storage and use – and so contribute to copyright infringement.

As a response to this, the Electronic Commerce Directive (2000/31/EC) was intended to provide so-called “legal security” by ensuring effective copyright protection on the Internet, but also safeguarding the interests of internet service providers.

Under Polish jurisdiction, the issue of liability for infringement of third party rights including copyright by service providers operating online is governed by the Provision of the Electronic Services Act of 18 July 2002. (Journal of Laws of 2002, No. 144, item 1204, as amended).

Under this statute, businesses providing services by electronic means are not obliged to verify the data they transfer, store or make available in terms of potential violations. At the same time, the act provides, like the Directive, liability exemptions which differ depending on the category of services provided. i.e. ‘mere conduit’ or pure transmission, caching and hosting.

It should be noted that the Polish Provision of Electronic Services Act substantially modifies the rules contained in The Electronic Commerce Directive on excluding liability for copyright infringement by service providers that provide hosting services.

In addition to the above statute, specific rules governing the use of copyrighted works by ISPs are set out in the Copyright and Related Rights Act of 4 February 1994. (Journal of Laws of 1994, No. 24, item 83).

It should be noted that the Polish legal system does not contain regulations typical of the “fair use” doctrine. However, It recognises the concept of ‘permitted use’ and provides that no case of permitted use can infringe the ordinary use of the work or violate the legitimate interests of the author.

The most important cases of permitted use that are set out in the Act include amongst others:

personal use;
temporary reproduction, if it is of a transitory or incidental nature, having no independent economic significance but constituting an integral and fundamental part of a technological process the purpose of which is to enable: transmission of a work through the data transmission system between third parties by an intermediary; or the lawful use of a work;
the use of works listed in the statute for information purposes (reproduction, dissemination);
the use of works by educational and research institutions for teaching and research purposes;
the right to quote;
the exhibition of artistic work by the owner of a copy (exhibiting);

It should also be made clear that Polish copyright law is based on the Latin model, which provides for the legal protection of personal copyright as well as the creator’s economic (property) copyright. Only the latter one is negotiable, which works by way of an assignment of rights. The personal copyright cannot be taken away.

Within this context, there was an interesting case of the alleged infringement of copyrighted work which was a photograph recently commented on in the Polish media concerning a famous blogger, the daughter of our former Prime Minister Donald Tusk -Make Life Easier.

This is a typical blog that could be described as a mixture of fashion and interior design with a healthy lifestyle and healthy eating recommendations.

On the last day of December Kasia (that’s the name of the blogger) informed her readers that the photo of her bedroom window that she had taken and posted on Instagram was subsequently used without her knowledge and permission by ZARA HOME for a campaign. The picture had been modified by the Zara Home and the company displayed its products on the picture.

As the blogger is a professional photographer it was assumed that the photo would fit the characteristics of a creative work, which you cannot use without the author’s consent.

Under Polish law, the mere publication of a photograph on the Internet, for example, on social media, is not the equivalent to giving such consent. However, a contract of assignment or a license agreement may authorize you to do so. Alternatively, you can also use the photo under the right of quotation. And this is where the matter becomes a little complicated. If we read Instagram’s rules carefully, it turns out that sharing, publishing or sending content using their service means granting Instagram a license to the content as well as a transferable license. This means that the service provider (in this case Instagram) can grant further licenses to other entities. So it could have been the case that Zara Home actually obtained a license from Instagram. However, even if this was the case, the copyright would have been infringed anyway.

By using the photo of Kasia Tusk, Zara Home violated more than just property rights.

So far, it is not known whether Zara Home used Kasia Tusk’s photos under a license. However, it does not change the fact that the violation actually took place. Even if not in connection with the infringement of the author’s economic rights, there is still the question of personal rights. Among them is the right to the integrity of the work.

Since the integrity of the content and the form of a work is a personal right and not a property right, it remains inextricably linked to the author. To put it simply, even if Kasia Tusk transferred the author’s economic rights in the photograph to Zara or Instagram granted the store a license, it would still have to obtain the author’s consent to make any changes to the work. However, there is no doubt that replacing elements of the photo with pillows from the store’s collection was a violation of the work’s integrity.

Jurisprudence (ECHR & CJEU) vs Law (Directives)

I risk stating the obvious, when I say that since the beginning of the Internet era, there have been ongoing discussions regarding the state of regulation concerning the scope of liability for ISPs to overcome legal security issues in terms of IP protection.

On one hand, there has been a legal concept proposed which aimed at imposing maximum responsibility for the publication of materials on the Internet on the ISPs as they have the necessary tools to remove any unlawful materials and can easily identify the perpetrators.

On the other hand, many academics and lawyers have argued that such a concept is not in keeping with the concept of a fair trial and does not ensure a fair balance between the rights of a potential claimant and other protected rights such as privacy, freedom of speech and the freedom to conduct a business.

The two directions have also been reflected in the CJEU’s Jurisprudence and other European courts. Some of them showing a liberal approach, others a very strict one in terms of the ISP liability

The most significant CJEU rulings in this context include the following cases:

– C-484/14 Tobias McFadden vs. Sony Music Entertainment (Secondary Liability for Open Wireless Networks in Germany)

In this case, the CJEU concluded that how the ISP’s liability is framed in the Electronic Commerce Directive gives theservice provider a right to supply access to a communication network as their business and that the public or society has the right to freedom of information.

– C-70/10 Scarlet Extended SA vs Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM),

The main issue for the CJEU was whether under several EU Directives

[on Electronic Commerce (2000/31), the Information Society Directive (2001/29), the Enforcement Directive (2004/48), the Data Protection Directive (95/46), and the Privacy and Electronic Communications Directive (2002/58) ]

and in light of applicable human rights it is correct to issue an injunction against an ISP to force them to introduce a system of filtering all electronic communications for an unlimited period, at its expense to block unlawful use or transfer of copyrighted works.

The Court concluded that Scarlet’s obligation to install a filtering system would in effect make the company carry out a costly general monitoring function for an unspecified period, contrary to the Electronic Commerce Directive.

Furthermore, the Court noted that the fundamental right to property, which includes IP rights “must be balanced against the protection of other fundamental rights.”

In – C-314/12 UPC Telekabel Wien GmbH vs. Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH,

An ISP in this case acted as an intermediary by allowing users to access copyrighted material on their website which meant that under Article 8(3) of the Information Society Directive (2001/29/EC) the copyright holder could apply for an injunction.

The court held that a national court may issue an injunction against an ISP in such a situation, but it must be balanced against the public interest in accessing the information.

– C-324/09 L’Oréal SA and others vs eBay International AG and others

L’Oréal, the French cosmetics company, is the proprietor of several national trademarks in the UK, as well as community trademarks within the EU. The company brought infringement actions against eBay, its European subsidiaries, and individual defendants who had sold several counterfeit items resembling brand names associated with L’Oréal.

Among other claims, L’Oréal argued that eBay was liable for the use of its trademarks by displaying them on the website and the advertising-sponsored links provided by Internet search engines, such as Google. In 2009, the UK High Court stayed proceedings pending a preliminary ruling by the CJEU in light of the applicable EU directives.

The Court held that a trademark proprietor is entitled under the Trade Marks Directive (89/104) and the Community Trade Mark Regulation (40/94) to prevent the operator of an online marketplace from advertising its goods without consent which were targeted at consumers in the EU. The Court also ruled that eBay may not be exempt from liability provided under Article 14(1) of the Electronic Commerce Directive 2000/31 when it plays an active role in the sale of goods by optimizing the presentation of offers or promoting them.

Concerning eCommerce platform content filtering systems, the CJEU held that eBay is an intermediary within the meaning of the third sentence of Article 11 of the Enforcement Directive (2004/48) and the injunctions against such intermediary may be issued, however the injunctions must be effective, proportionate and deterrent, without creating restrictions on legitimate trade.

The cases and decisions I have highlighted seem to confirm that there is no uniform position for the CJEU when it comes to the IP infringement on the internet. Therefore, we might conclude that EU law, including the jurisprudence, is in a constant state of development concerning the issues discussed because of the evolution of New Technologies.

The regulators at both EU and national level have found it necessary to amend the existing provisions regarding the internet sphere and upgrade the security rules for digital platforms, services and products.

To this end the Digital Service Package will soon enter into force to complete the EU Digital Single Market.

At this point, I would like to mention that the Polish government has recently also introduced a new bill referred to as the “Freedom Act” which governs the issue of freedom of speech on the Internet.

The aim of the bill, as our Minister of Justice expressed, is to prevent ISPs from blocking content posted by internet users provided it does not violate Polish law. Under the bill the person whose posts or comments have been blocked will be able to appeal to the Council for Freedom of Speech and it will be for the Council to decide whether the measure applied by the online service provider was justified or not.

Many lawyers have taken the position that the bill contradicts the DSA project (on which the European Union, including Poland, is currently working intensively) to a certain extent by, for example, granting protection only to Polish Internet users or not defining “unlawful” content. The EU regulation on digital services, as a supranational law will supersede the Freedom Act, which may be a major complication for Polish Internet entrepreneurs who are at risk’ from having to adapt to the requirements of both acts.

Concluding the question of whether the legitimate interests of all internet users and ISPs may be fairly protected and secured under new EU legislation and Member State national laws remains still open for further discussion.

The virtual law firm

Napisane przez AEA - EAL w dniu 2020-07-15. Opublikowano w Articles.

July 15, 2020

Alex Tallon

The evolution that our society has known in the last forty years is impressive and mainly has to do with the development of new technologies. The question is to what extent this has already profoundly influenced the legal profession.
In the current organization of the law firm, the possibilities offered by these means of communication and the access that this makes possible to documentation and thus to knowledge must surely be taken into account and be implemented.
The Covid crisis has got this advantage that it has forced to accept and implement forms of co-working including the possibilities of teleworking and virtual meetings. This means however that, as far as law firms are concerned, these must change fundamentally their organization and also, in a certain way, their relationship with the clients. The manner to provide legal services must take into account the use of these technologies. These technologies allow various forms of digitization or dematerialization of the lawyer’s activities. The most extensive form of dematerialization consists of the paperless management of the office with the collaboration between the participants of the office on an Electronic Collaborative Platform (here abbreviated as ECP). Current contribution aims to review the possibilities that the new technologies allow for the organization of the law firms, their services to the client, the profitability of their activities, and how this should be accommodated within the application of our deontological rules.

A. The organization of a modern office

1. Influence of modern technologies

It is not disputed that our society has undergone tremendous evolution in the field of word processing, storage and communication technologies over the past 40 years. This evolution within society gives real meaning to the concept of the globalized world. Physical travel is no longer necessary to be in direct contact with the whole world. What’s more, relocations are no longer necessary to gain access to all of science and knowledge. The dangers of this are known. The control of the content and transfer of knowledge and documentation is nonexistent. But the generation brought up on these new technologies and making them their own approaches the world from this perspective.

These new technologies also affect services.
This of course applies to all practitioners of a liberal profession, from the architect to the physician. But above all, this applies to the legal profession. The reason for this is that the lawyer provides a service for which at first sight no special knowledge is required from the moment one has access to the applicable texts. In the current knowledge society in which everyone has, or at least can easily, access, or at least have access to, all laws and regulations, whatever their origin, the lawyer must clarify the added value he has to offer. Good and targeted use of these modern technologies is indispensable for this.

a. Organization of the office.

Modern technologies now allow access from anywhere in the world to the content of all files that are managed.
This of course requires working completely paperless.
An ECP office will therefore have to offer the option of digitizing all files.
To this end, an adapted archive management will have to be established, as well as a nomenclature, which makes it possible to request any document very quickly.
All useful documentation must be electronically accessible. This both internally (models and the like) and externally (access to databases and the like).
More than before, the necessary precautions will have to be taken regarding the preservation of the confidentiality of the data. However, the ECP office cannot close its eyes to the dangers of theft of its know-how and knowledge. Clear agreements must therefore be made with employees with regard to the transfer of copyrights, and the retention of data that may never be copied or carried over. Apart from the deontological aspects associated with it, every office must think carefully about the politics it wishes to pursue towards its employees.
This organization, made possible by modern technologies, is optimized by externalizing the digital storage of data and documentation, as well as all kinds of services related to the management of the software used, in other words through cloud computing. Importance must be given to secure the documents in the cloud.

b. Place of supply of services.

The law and the rules of the bar require that the lawyer has an office, which means a physical establishment in the district of the Bar Association where he is registered. He must be available at that office and have the necessary space to receive clients and keep his files.

A physical location now serves as a starting point to enable registration at the bar. However, it should be possible to request registration at a bar without providing a physical office address. Or at least it can be assumed that the lawyer’s place of residence can serve to determine the place of the bar where he can register.
One must also comply with the rule of uniqueness of the office. Does this ultimately make a lot of sense, now that people can work from anywhere in the world without there having to be any physical connection with the country from which one is supposed to work. For lawyers working in a partnership, this means that they must all be at the same address. In an ECP office, the bar should abandon this maxim. Indeed, in a world where IT allows communicating with anyone anywhere, it makes little sense to require lawyers who have decided to collaborate to also have a joint physical address. It would be advisable to take this (virtual) reality into account and to regard a joint electronic collaborative platform as a sufficient criterion to form a partnership. In that case of course with respect of the rules of conflict of interests.

c. The method of cooperation.

A law firm is primarily a group of people among whom the work that is entrusted by clients is distributed.
Assistance to the lawyer in the management of an electronic file is not of the same nature in an ECP office. These new tasks must be completed and must also be used optimally. It requires a thorough adjustment.
But cooperation with intellectual input must also be adapted to the electronic management of the office. Working with an electronic collaborative platform allows for great flexibility. Thus, more than before, the work can be delegated in an optimal way, with a more efficient and above all more reactive control, since the work is always fully available and controllable. The collaborative platform also makes it easy to collaborate on a file not only with two, but also with several people.

d. The service to the client.

The services of the lawyer mainly consist of quality and reactivity. The quality in itself mainly depends on the competence of the lawyer. The services in a paperless office can probably facilitate this quality by giving better access to documentation, closer control by the client (which one can grant access to the electronic file and thus the completed tasks), an optimization of the cooperation by to combine work force and experience.
Reactivity can also be optimized in an ECP office. The direct contact between client and service provider and the permanent possibility of exchanging information allow exceptional reactivity when compared to traditional working methods.

e. The execution of the service.

The traditional service consists of answering a legal question, editing contracts, assisting during proceedings. Most lawyers provide 'custom work’.
This has already been challenged in traditional offices by two evolutions: the specialization and the use of standard forms.
The electronic management of files and documentation allows law firms to create databases, so that they can fall back on work that has already been performed to provide an answer to the client.
These databases can also be made available to the client for a fee. The ability to provide more and more services as standard allows the profession to evolve from service to product provider. This fundamentally changes the legal profession, because the performance will have to focus more on updating data than on a file-related and specific answer to a legal question. The client will have access to the latter and will consult the law firm that can offer him the most reliable database.
This can also be optimized with the use of artificial intelligence. The challenge for law firms here is to gather sufficient financial resources to develop AI tools. Rather, it appears to be a task for lawyers’ organizations or partnerships based on mutualisation.

f. Access to knowledge.

Before the emergence of the world wide web, and the possibilities thus offered, access to knowledge in a certain matter was reserved for a few privileged people.
This time has passed. The knowledge is now available to everyone and immediately available. The question is what one does with this accessibility. In any case, expertise is still needed to actually convert this access to knowledge into usable knowledge.
The law firm can play a role in this. Internally by providing employees with the necessary tools to have electronic access to the most up-to-date documentation and, if necessary, their own database. The latter will certainly be part of an office’s intellectual value.
Externally through the exchange of data and knowledge with clients or even interested parties, whether or not for a fee.

2. The benefits

This organization offers several benefits to the lawyer and the client.

a. The cost of the service.

The elasticity of pricing of lawyers’ performance is high. The client is primarily interested in the quality of the work delivered.
However, the client is more sensitive than before to the cost of legal services. It must be admitted that this cost price is not cheap in the traditional working method.

So, there is undoubtedly an evolution going on, which is also influenced by computer science and social media, with the law firms also emphasizing the price-quality ratio of the services provided.
Because more and more work can be standardized, and because the presence on the net can also give greater visibility to more offices, competition is becoming more and more common, so that the rates can determine the choice of lawyer.

In the ECP office, fixed costs can be significantly reduced: teleworking allows the office space to be reduced significantly, the number of staff in charge of administrative tasks can also be reduced, in other words the costs of administrative support are reduced to a minimum.
This allows not to charge useless costs to the client.
For some specific performance, for some specific areas, the pricing is likely to be of little importance, and the reputation of the lawyer or firm is decisive for the choice of lawyer. However, this domain is shrinking and only applies to a small part of the legal market. For the remainder, and therefore for the most part, it will be important to demonstrate that quality is delivered at the lowest possible price. The development of an ECP office is undeniably an asset.

b. The quality of the service

Apart from this pricing, quality is of course important. This quality will always depend on the people who practice the profession. As a professional group, it therefore remains necessary to monitor the quality of the legal profession in general. Professional organizations can do little to nothing to provide a guarantee of this quality, to the extent that they must provide this guarantee. The client is therefore expelled on his own, and on what makes the reputation of some office or other. For this, people are increasingly focused on the comments in social media and the presence of lawyers or offices is not without importance. Ultimately, it is the market that provides insight into what is successful or not, and often, not always, this is accompanied by quality.

This quality is probably best framed in an ECP office and thus the principles of collaboration on an electronic platform:
– such an organization increases the reactivity of the lawyer; this to the great satisfaction of the client. The client thus has the impression that he has an in-house lawyer;
– the electronic collaborative platform makes it very easy to let a group of lawyers work together who, due to their diverse competences and experiences, can optimize the quality of the service.

c. The cooperation between the lawyers

The electronic collaborative platform is essential within the organization of the modern office. This increases the quality of the cooperation between the lawyer dominus litis of the file and often partner within the firm, and those who assist him in providing the legal services.
The absence of location-related services increases in practice the quantity and quality of the collaborative work in order to achieve the most efficient cooperation, with a view to the best possible execution of the mandate or answer to the legal question, and thus in the interest of the client.

d. The profitability of the law firm

The classically organized office suffers from numerous fixed costs. These undoubtedly have an influence not only on the price that can be attributed to the client, but also on the intrinsic profitability of the office.
An ECP office allows to reduce the fixed costs as much as possible. As a result, such an office has a high return on the final fee charged to the client.

e. The welfare of the lawyer

It is a widely recognized observation that today’s society generates more stress; the working comfort decreases rather than increases.

The choice that many offices have to make, regardless of the different levels of digitization, between the paper and the paperless office is probably no surprise. The compromise between the traditional working methods of the paper office and the various forms of working methods made possible by its dematerialization increases this stress, partly because double checking is required and there is a fear of mistakes or misunderstandings.
The resolute choice for an ECP office and the associated paper lessness, collaborative working methods and task management, allow for a more comfortable planning and execution of the work.
In particular, the electronic methods of task management take away the stressful aspect of an unidentifiable deadline. An electronic collaboration organization does not reduce the work or the deadlines but allows them to respond with greater serenity.

3. The disadvantages

A number of drawbacks, or at least risks, can be mentioned that are linked to this modern organization:

a. The remote and looser collaboration.

Cyberspace simultaneously creates a collaborative platform, but also an organization that is very much focused on the individual. This individualism must always be opposed, because it can degenerate into a trapped image. If the partnership is not always fueled by meeting moments – which may be electronic – there is a risk of losing contact and thus achieving the opposite effect from what is desired.
The ECP office must pursue an animation policy in various ways and develop a business model that strengthens the bond between the participants. This is also accompanied by building up a strong 'office brand’ (branding, communication) that also underlines the bond between the participants of the office for the clientele.

b. The blurred image for the client.

The modern office organization allows, in the extreme case, to manage files without ever having seen the client, let alone heard. This form of abstraction, and perhaps the absence of humanity, can create an impersonal image that is not conducive to customer loyalty. This must therefore be regularly answered and / or contested by building in moments for these personal contacts.
Building a strong 'office brand’ is therefore essential in order to convince the client of the cohesion of the participants of the ECP office.

c. Keeping the documents.

It should never be forgotten that there is still a need to keep the paper version of some documents, to preserve their evidential value. It is therefore necessary to combat the risk of losing valuable paper documents.

d. Loss of place binding.

Advice in legal matters often also has to do with identity and community. This can be interpreted culturally in different ways but is clearly location specific. The full digitization and non-location-bound office organization may ignore this cultural aspect, with all its consequences. Legal services remain a human matter, so it may also be related to the location of the persons requesting this legal service. The ECP office will therefore always have to take social and cultural considerations into account.

4. Is the modern office an ECP office?

The ECP office is therefore not a 'virtual office’ in the sense that it is not the second life version of a law firm. But it also allows it on the other hand. It is an organization that is fully committed to digitization and the use of the most modern techniques to practice as a lawyer.
Therefore, the modern office, the office of the future, is necessarily an ECP office. All offices have already opted for digitization but have almost never extended this to the organization itself of the working conditions.
It is this link that must be made to actually turn the law firm that uses a number of digitization techniques or modern technologies into a modern office.
There is a great degree of difficulty in moving from the traditionally organized office to an ECP office. A step-by-step transition to an electronic collaborative platform is almost impossible and requires taking so many obstacles that the outcome is uncertain. After all, it is not an evolution, but a true revolution in the organizational form of the office.

B. The deontological framework of the ECP office.

In every technological evolution, be it the telephone, the fax, the informatics, the mobile telephone, the legal profession has asked itself questions regarding the combination of this technology with the basic values of the profession. But too often people forget that technology is not an end in itself, but only a means of practicing the profession.

There is no choice in the field of tension between modernity and traditional values. Both must go together. Traditional values must not prevent modern interpretation of the way in which services are provided by a lawyer, at the risk of disappearing as a professional group.

1. Can modern technologies go hand in hand with safeguarding the core values of the profession?

This question should be examined mainly in the light of professional secrecy and the independence of the lawyer, the two core values that are sometimes said to be challenged when using modern technologies.

a. Professional secrecy.

The legal profession requires the respect of the professional secrecy as a foundation of the lawyer’s statute. It means that the core activities of a lawyer can only be exercised in a privileged relationship of trust between the lawyer and his client. If a client cannot trust his lawyer, it is not possible for the lawyer to perform his duty of defense and determining the legal position of his client.
This requirement to safeguard professional secrecy is not a right, but a duty of the lawyer.
It must therefore be stated that, in the exercise of his profession, the lawyer makes every effort to guarantee professional secrecy.
In most cases he does this by not answering questions about a file, by not disclosing the information, etc.
This professional secrecy will also protect confidential correspondence and documents against criminal prosecutions, albeit with occasional exceptions that do not alter the fundamental principle.

When it comes to the use of modern technologies, the lawyer must make every effort to keep confidential the information communicated to him.
However, this requirement must be met with common sense.
Thus, it will not be forbidden for an employee to take cognizance of confidential information, for example by typing a confidential letter. This is then called shared professional secrecy. The lawyer shares his professional secrecy with the persons he entrusts with executive duties.
Nor will it be required that all data entrusted by a client be put in a safe. No bar has ever considered it useful to oblige a lawyer to install a high-performance alarm system in his office.
In other words, when a client provides confidential information to a lawyer on a medium, there is always a risk that this document will end up in the wrong hands at some point, even if the risk is minimal and the lawyer will do everything to avoid it.
Hence, any prudent lawyer will sense when to take special measures for certain files or documents.
There are several reasons for this, including:
– the document is part of a very sensitive file
– the document is unique: losing it would have very serious consequences for the client
In these cases, it can be assumed that these documents would be stored in a safe, for example; or that the lawyer refuses the original, having regard to the risk involved in the event of loss.

It must be considered as a form of prohibition of the use of modern technologies to make this subject to strict conditions in order to preserve confidentiality. This makes it impossible to use these technologies. As if the lawyer who uses these technologies would not pay attention to this confidentiality or that his client would ignore it.
This applies, inter alia, when talking about terms and conditions imposed by the providers of these modern technologies.
Bar leaders who consider that certain forms of these technologies cannot be used because they would not provide sufficient protection for professional secrecy bypass market mechanisms to which the lawyer, like any service provider, must submit.
However, Bar organizations could join forces and impose conditions on providers of modern technologies. But is this one of the core tasks of a Bar Association?

b. The independence.

The use of modern technologies makes the legal profession dependent on the access providers to these technologies.
Likewise, every law firm relies on modern means of communication and electricity. This 'dependence’ does not jeopardize the independence of the lawyer.
The lawyer’s independence is a state of mind. It is difficult to include this in deontological rules, other than by introducing certain categorical prohibitions (like the rules concerning the conflict of interest).
The fact that the lawyer is dependent, for the organization of his office, on a number of service providers who can have a very important influence on the way in which this lawyer provides his services, does not affect the fact that he exercises his profession in complete independence.

2. The position of the CCBE

Few bars have regulated the use of modern technologies. Most bar councils assume that the ethical rules apply unchanged, without the technology used by the lawyer having any influence on this. It is often framed in guidelines or recommendations. Whether these meet the real needs is often the question.

For this specific topic, we can refer to the guidelines 'on the use of cloud computing services by lawyers’ adopted by the CCBE on September 7, 2012. The CCBE wants to draw the attention of attorneys to the risks associated with the use of 'cloud computing’.
Cloud computing is defined as an IT infrastructure in which data and software can be stored and adapted in external servers that are managed by a service provider via the Internet.
The CCBE rightly states that for the individual lawyer a number of questions can be asked when using cloud computing, which include issues such as:
– professional secrecy and data protection: what is the security of the system? What happens to confidential information and where is it stored? Is there a risk of unauthorized access to the data, both internally (personnel and subcontractors of the provider) and externally (hackers via the internet)?
– Extraterritoriality: are servers used in countries where there is not the same degree of protection as in Europe? Can the local authorities of the place where the data is stored oblige the provider to grant access to confidential information stored on this server?
– The not always clear contract terms with the cloud provider

The CCBE recognizes the great value of cloud computing, but points to the need for lawyers using cloud computing to take the necessary steps to ensure that the confidentiality of its client’s data is guaranteed.
That is why the CCBE considered it useful to lay down these guidelines. In summary, insofar as the rules of the bar allow data to be stored outside the office, the lawyer must ensure that this data is stored securely and in accordance with the European Data Protection Directive; the lawyers who use cloud computing should therefore have an internal policy regarding the way in which they deal with this cloud computing; the choice of the cloud provider must include a selection based on criteria such as experience, specialization, location, etc., with which monitoring of confidentiality is still possible; The CCBE thus also accepts that different ways of storing and using data can be recorded, depending on the type of data justifying a different level of security. The CCBE also recommends taking a number of contractual precautions and ensuring transparency to clients about the use of cloud computing.
Aware of the benefits of cloud computing and the likely impossibility of individual law firms to comply with all recommended guidelines, the CCBE invites national bars to develop mechanisms to make it easier for lawyers to comply with these recommendations, such as proprietary cloud computing infrastructure permitting respect for these guidelines.

3. Is an adjustment of the ethical framework necessary?

It should be noted that there is no specific regulation on the ECP office, but that the bars and national or international bar organizations issue recommendations or guidelines on certain new technologies, in the light of the existing regulations.
However, it should also be noted that these existing regulations are not always adapted to the needs of ECP offices. This applies, for example, to the physical office address, the forms of partnerships, but also to more essential principles such as conflicts of interest and confidentiality. A requirement of transparency is the best guarantee of preserving the essential values of the law profession. This transparency is of course accompanied by the agreement, explicitly or otherwise, of the client with the organizational form of the law firm that offers the services.

CONCLUSION

The existence of ECP offices is a reality. The bars and their organizations must also frame and encourage this.
Adaptation to modern technologies by a professional group that is particularly dependent on the organization and cooperation of the members of a partnership is essential. To forbid some form of use of modern technologies on the basis of a conservative approach to certain basic values is pernicious.
The ECP office allows the efficient and smooth provision of services for the client and reduces costs, which is a competitive requirement. In the current European context, it is important for law firms not to miss the train of modernity.

Digital revolution : What about lawyers?

Napisane przez AEA - EAL w dniu 2017-12-15. Opublikowano w Articles.

December 15, 2017

Patrick Conrads

Like many other professions, lawyers are affected by the digital revolution. Technological tools and artificial intelligence lead to simplified and automated procedures that upset/subvert/shake our traditional ways of working. In addition, lawyers no longer have a monopoly of knowledge, which is now open, free and available to all. By opening up knowledge, the digital revolution with its portability tools is pushing for transparency, responsiveness and collaborative mode.
The profession is now faced with multiple challenges: economic sluggishness, globalized competition, artificial intelligence, the emergence of an increasingly sophisticated outsourcing, transformation of some of its know-how into commodities. It is also competing with other professions, that is why it is now essential to focus our efforts on driving change.

Although the brand „lawyers” carries many guarantees of quality of service (strong ethics, demanding discipline, guaranteed competence), these essential elements are not sufficient to allow the profession to build its attractiveness and profitability model without holding account of the expectations expressed by consumers.

Lawyers must therefore question the value of changing the way they work, interacting with their clients and with their various partners (jurisdictions, administrations, other professionals). Innovation requires to increase the risk culture and also requires phases of implementation and adaptation that are not always compatible with the profitability requirements of firms.

Despite this, digital electroshock must be seen as a real opportunity for lawyers, the challenge being to think about how to take advantage of it.
Indeed, advances in new technologies offer many advantages: saving time, money, quality and efficiency in the collection and pre-processing of legal information, for example.

1.
New tools of work develop as well as predictive justice. With softwares, it is possible to calculate the probabilities of success in court and to predict the amount of compensation that clients are likely to receive. These softwares recover a maximum of rendered decisions and allow a quantification of the legal risk. Predictive justice is a step forward for litigants because they can have an idea of the chances of success of their action, but the software remains only tools.

However, the use of simple technologies makes it possible to increase accessibility without weighing on the lawyer’s agenda, for example by setting up extranets (Internet tools allowing the storage and the sharing of documents: contracts, procedure, company documents, or calendar sharing). Technology can therefore be a source, under certain conditions, of increased proximity and better service (doctrine.be, droitbelge.be).

In addition, new tools that are now financially accessible make it easier to generate simplified legal documents and platforms for linking lawyers and litigants (my-lawer.be). Platforms also appear for mediation or amicable dispute resolution with reasonable stakes in a diversion perspective.
Other tools exist only at a rudimentary stage but should multiply rapidly, like chatbots. It is a program that incorporates an algorithm to establish short conversations between a user and the website. Also known as „conversational agents”, these programs will develop an increasingly sophisticated language and draw on an increasingly rich mass of information (associated with the recurrence of certain frequently asked questions) to allow a first sorting in the questions asked by the litigants: the user asks a question „in natural language” and gets an answer as soon as the machine has identified the question.
Computer programs of artificial intelligence are also developing. The best known in the legal world is Watson, a program developed by the IBM company, which responds to the questions asked in natural language. A specific version of Watson has been developed specifically to answer legal questions: Ross40, which has been „hired” by a dozen law firms. This program is not only able to find among millions of documents a legal answer to a question asked, but also has a system of learning: It self-improves as it works.
These Artificial Intelligence tools will eventually replace the lawyer in his job as a legal technician to extract relevant references to the case. The lawyer will focus on the strategy and the human aspect of the case, which is at the heart of his job.

2.
On the other hand, the digital revolution has also changed the requirements of customers who are better informed, Google being their first consultant. They want simple answers in fast deadlines. Clients’ legal needs are evolving into turnkey solutions, which forces us to reinvent our services and the relationship with our clients. Two major implications are to be taken into account:

The first one concerns the standardization of some of our services: Regular products such as general sales conditions, company statutes, a rather simple work contract are now „standardizable”. Faced with the already active presence of online platforms with more standardized services, we can see that the client now accepts the idea of reducing some of his expectations (especially the „tailor-made” dimension) to satisfy an immediate need or constraint budget. The lawyer will have to accept this phenomenon of standardization of some of its services, because of the appearance of the digital.

The second implication relates to the phenomenon of rating benefits: It is not unlikely that in the long run, there will be indications on lawyers in relation to defined criteria as its efficiency or the respect of the budget. This notation can be unfounded, unfair or simply artificial, but it is a phenomenon inherent to the Digital. If we do not accept this phenomenon of „desecration” of certain aspects of our profession, then we will undergo this digital change rather than accompany it.
Customers have become digital consumers and are looking for more agile solutions for communication, pricing, listening and content. They are more and more demanding which has consequences on the valuation of the service, on the prices practiced and on the way the right is approached as product. The client wants to become an actor of his file and the lawyer becomes neither guide nor companion of road.
The challenge is to learn how to serve them the way they want. The need for legal advice is immense in our complex society, and machines can offer us more resources and time to put the human in the center. Too many lawyers today perceive innovation as a threat rather than an opportunity. However, it is by developing a prospective vision of its activity and refocusing on its added value that the lawyer of tomorrow will be the winner of the digital revolution. The client will no longer come to his lawyer to obtain an obscure or abstract legal answer. He will come to share a common experience with his lawyer and together they will work out the best practical solution to adopt.

3.
Therefore, the lawyer will have to change his practice. He will have to have the tools of Artificial Intelligence while remaining focused on his primary role, that of consulting. Also, measuring risks, listening, empathy, pedagogy, ethics, deontology and creativity will remain constant. Explaining the issues to the client, diagnose, and find solutions cannot be done only through a machine, the lawyer will always use his skills to know whether it is advisable to follow or not the opinion of the machine given as an indication.

Artificial Intelligence should not be seen as competing with human intelligence, but as complementary. It will always take humans to think the rules, to elaborate them, to do justice and to apply the law. Even though people have access to information, they do not have the skills to understand it. The lawyer will always be indispensable to interpret the rules of law. He also has an increasingly important role to play regarding the psychological, social and human support of his clients. An innovative lawyer does not see justice as an end but as a way to do his job better. He uses technology to rethink and improve the key elements of his business and his added value.

In France, the process of change is already well underway. Lawyers expand their field of action: they collaborate with other regulated professions, manage transversal projects, and develop innovative tools.
Emmanuel Macron initiated the movement by passing a bill in 2015 that opens the door to interprofessionality, external financing and authorization to market related goods and services on an ancillary basis. „These adaptations are at the origin of a remarkable dynamic of creation of new structures and new technological solutions „. (Stanislas van Wassenhove, Lawyer And Initiator Of The Digital Electro-Choc Conference)
In Belgium, the Bars (Avocats.be and the OVB) have created in 2016 a digital platform to put lawyers in touch with the courts and tribunals. A year later, young lawyers launched the Incubateur.legal to educate lawyers about new technologies and innovation;
In addition, the European Incubator of the Brussels Bar (INCUEBRUX), which aims to complement the incubator of the O.B.F.G, has just been created. This incubator, which wanted to be mixed and international, has for mission to ensure the training and the information of the lawyers of the bar of Brussels on the technological developments which concern them, to be a place of exchanges and debates on the modernization and the reform of the legal profession, to act to ensure that the bar is committed to the digital revolution in accordance with its values and to federate European initiatives on technological innovation and its implications for the profession. Several projects are already in preparation (http://www.incubateur.brussels).

4.
In conclusion, the developments in artificial intelligence offer the lawyer new perspectives to manage knowledge, organize data, and anticipate the outcome of litigation through predictive tools and thus free up time to accentuate its advisory role.

Beyond certain prerequisites (finance, IT, communication, project management), the lawyer will open by developing his human and relational skills: listening, empathy, acceptance of failure, creativity, agility, adaptability, management of emotions, letting go and sharing experience. Emphasis will be on well-being rather than know-how.

For lawyers, being interested in innovation, not only technological but also economic, managerial and societal is a prerequisite for the necessary transformation to ensure the sustainability of the essence of the legal profession: to defend and advise the human.

Some people think that the technique is neutral and that everything depends on the way users control it. Others, highlight the dangers of any technical progress, including digital. Without wanting to be able to decide this debate, we can highlight the following certainties:

• Digital technology can make people aware of their legal needs and contribute to the knowledge of the law, which is an essential element of the rule of law.

• For professionals, the eruption of digital is a threat because the benefits become interchangeable, and are judged by customers only in terms of price, which becomes the main criterion of choice.

• Digital represents a world of opportunities: by breaking down the barrier of inaccessibility, it makes it possible to come into contact with non-consumers and thus gain a lot in productivity. Similarly, getting rid of tedious, non-value-added tasks also increases productivity.

As an indication, here are the digital proposals from the report by Kami Haeri, a lawyer at the Paris Bar, on „the future of the legal profession”:
• Develop a culture of innovation, integrating the concept of entrepreneurial risk into the lawyer’s learning;
• Sensitize law firms to new offers for their clients, including the provision of „intelligent forms”, general legal information („freemium” offers);
• Sensitize law firms to develop a branding strategy that goes beyond the name of the founders and ensures the firm’s outreach through other forms of brand expression;
• Introduce in the management of firms, new practices and new tools borrowed from the world of business: develop work in project mode, assign assignments to younger employees in the development of the firm, set regular interviews and, in any event bi-annual;
• Professionalize the management of firms, favoring the management of non-lawyer firms, such as secretaries general.
In short, lawyers are experts at controlling the risks of their clients and they have developed sharp specializations. The skills of excellence must today be coupled with the skills identified as those of the future by the last Davos Economic Forum: an entrepreneurial attitude, a listening posture, open to project management and multidisciplinarity as well as collaborative methods.

INTERNET SOURCES :
http://www.justice.gouv.fr/publication/rapport_kami_haeri.pdf https://www.lecho.be/actualite/archive/L-avocat-3-0-augmente-par-la-technologie-libere-descarcans-du-passe-et-forme-a-l-humain/9961894 https://revuedesjuristesdesciencespo.com/2017/03/07/lavenir-de-la-profession-davocat-entretienavec-maitre-kami-haeri/
http://www.lalibre.be/economie/digital/la-french-tech-veut-rayonner-a-bruxelles588e24bacd70e747fb663703
https://www.incubateurbxl.eu/
http://openlaw.fr/index.php?title=Open_Law,_le_Droit_Ouvert https://blockchainfrance.net/2016/01/28/applications‐smart‐contracts/ http://www.coindesk.com/ipo‐and‐insurance‐projects‐win2000‐at‐blockchain‐hackathon/ http://www.rossintelligence.com/
http://www.lemonde.fr/pixels/article/2016/05/27/une-intelligence-artificielle-fait-son-entree-dansun-cabinet-davocats_4927806_4408996.html
http://www.dayone-consulting.com/fr-actualites-paris/etude-lpo-lexternalisation-des-prestationsjuridiques-2/

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Digital revolution : What about lawyers?